Wiseman v. Cate et al

Filing 8

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Michael J. Seng on 2/27/2014. First Amended Complaint due within thirty (30) days. (Attachments: # 1 Amended Complaint Form). (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHESTER RAY WISEMAN,

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Plaintiff,

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CASE NO. 1:13-cv-01951-MJS
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
(ECF NO. 1)
MATHEW CATE, et al.,

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AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS

Defendants.

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SCREENING ORDER
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I.

PROCEDURAL HISTORY

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Plaintiff Chester Ray Wiseman, a state prisoner proceeding pro se and in forma
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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 2, 2013.
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(ECF No. 1.) He has consented to Magistrate Judge jurisdiction. (ECF No. 5). His
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complaint is now before the Court for screening.
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II.

SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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III.

SUMMARY OF COMPLAINT

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The Complaint identifies the following individuals as Defendants: (1) Mathew

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Cate, Secretary of the California Department of Corrections and Rehabilitation; (2)

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George J. Giurbino, Director of Adult Institutions; (3) David Skaggs, Community

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Resources Manager Religious Programs; (4) Martin D. Biter, Warden, Kern Valley State

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Prison (KVSP); (5) D. Davey, Chief Deputy Warden, KVSP; (6) C. Pfeiffer, Associate

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Warden, KVSP; (7) J.D. Lozano, Chief Inmate Appeals Coordinator; (8) K.J. Allen,

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Appeals Examiner; (9) K. Whisler, Supervising Correctional Cook; (10) A. Herrera,

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Supervisng Correctional Cook; (11) M. Mills, Cook, KVSP; and (12) E. Agu, Supervising

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Correctional Cook.

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Plaintiff alleges the following:

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On March 18, 2010, Defendant Giurbino issued a memorandum directing

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correctional food managers to purchase Halal meats for the Religious Meat Alernative

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Program (RMAP). (Compl. at 7.) Plaintiff participates in this meal program at KVSP.

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RMAP serves religiously compliant meals containing meat at dinner but vegetarian

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meals at breakfast and lunch. Kosher and vegetarian religious meal programs offer

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three observant meals daily. Occasionly the Halal version of the secular dinner amounts

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to less food; Plaintiff has lost weight as a result. (Id. at 3.)

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Plaintiff notifed Warden Biter on June 6, 2012 via letter that RMAP was

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insufficient because it failed to provide Halal meat at all three meals while other religious

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meal programs provided religiously proper meals at breakfast, lunch, and dinner. The

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next day Plaintiff reiterated his complaints in a letter to Secretary Cate.

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Defendant responded or took steps to correct the situation. (Id. at 8 and 9.)

Neither

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On July 15, 2012, Plaintiff filed an inmate grievance regarding the food program.

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(Id. at 39.) Defendants Whisler and Herrera interviewed Plaintiff as part of the first and

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second level responses, respectively. Neither Defendant took corrective action. (Id. at

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9-11.) Defendant Pfeiffer denied Plaintiff‟s grievance at the first level of review because

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the breakfast and lunch meals provided to observant Muslims such as Plaintiff, while

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vegertarian, met Halal requirements. (Id. at 32.) Defendant Davey denied the grievance

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at the second level of review on the same basis. (Id. at 34-5.) Defendants Allen and

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Lozano authored the third level response and also denied Plaintiff‟s grievance. The

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Defendants stated, “[t]he vegeatarian option for breakfast and lunch meets Halal

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requirements.

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supporting evidence that KVSP is not meeting his dietary requirements according to his

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religious beliefs.” (Id. at 37.) On January 15, 2013, Defendant Skaggs responded on

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behalf of Secretary Cate to Plaintiff‟s June 7, 2012 letter. Defendant Skaggs stated that

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RMAP was crafted with the assistance of the Muslim community and designed to satisfy

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nutritional need. (Id. at 12, 13, and 46.)

The reviewer determined that the appellant did not provide any

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At times the RMAP meals were served burned and in smaller portions. On April

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14, 2013, Plaintiff filed an inmate request to address the food problems. Defendant Mills

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provided the staff response which denied serving smaller portions and ensured that food

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would be heated properly.

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supervisory level and explained that items with non-Halal meat couldnot be substituted

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with a Halal mix. He also noted that other vegetarian items were provided. (Id. at 48.)

Agu reviewed Plaintiff‟s request at the

Defendant

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Plaintiff asserts that RMAP has denied him the ability to freely exercise his

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religion, in violation of the First Amendment and the Religious Land Use and

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Institutionalized Persons Act, violated his Eighth Amendment right to adequate food, and

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deprived him of his Fourteenth Amendment right to equal protection. The Court will

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address each claim below.
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IV.

ANALYSIS

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A.

Section 1983

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Section 1983 “provides a cause of action for the „deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws‟ of the United States.”

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Wilder v. Virginia Hosp. Ass‟n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under Section 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda

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Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct.

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1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to „state a claim that is

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plausible on its face.‟” Id. Facial plausibility demands more than the mere possibility

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that a defendant committed misconduct and, while factual allegations are accepted as

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true, legal conclusions are not. Id. at 1949-50.

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B.

Free Exercise

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The First Amendment “prohibits government from making a law „prohibiting the

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free exercise (of religion).‟”

Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam)

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(alteration in original). Prisoners “retain protections afforded by the First Amendment,”

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including the free exercise of religion. O‟Lone v. Estate of Shabazz, 482 U.S. 342, 348

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(1987).

“A prisoner's right to freely exercise his religion, however, is limited by
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institutional objectives and by the loss of freedom concomitant with incarceration.”

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Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013)

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(citing O'Lone, 482 U.S. at 348).

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In order to establish a free exercise violation, a prisoner must show a defendant

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burdened the practice of his religion without any justification reasonably related to

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legitimate penological interests. See Shakur v. Schriro, 514 F.3d 878, 883–84 (9th Cir.

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2008). Only beliefs which are both sincerely held and rooted in religious beliefs trigger

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the Free Exercise Clause. Id. at 884–85 (citing Malik v. Brown, 16 F.3d 330, 333 (9th

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Cir. 1994) and Callahan v. Woods, 658 F.2d 679, 683 (9th Cir.1981)).

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The Religious Land Use and Institutionalized Persons Act (RLUIPA) prohibits

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prison officials from substantially burdening a prisoner‟s “„religious exercise unless the

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burden furthers a compelling governmental interest and does so by the least restrictive

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means.‟” Alvarez v. Hill, 518 F.3d 1152, 1156 (9th Cir. 2009) (quoting Warsoldier v.

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Woodford, 418 F.3d 989, 997-98 (9th Cir. 2005)).

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Plaintiff alleges that the failure to provide Halal meat at all three meals is a burden

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on the practice of his religion without reasonable justification and therefore violates the

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First Amendment and RLUIPA.

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vegetarian meal burdens his religious practice. It might be he feels he is being put in a

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position of having to suffer malnourishment or violate his religion by eating non-Halal

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food. However, he does not so allege and it is doubtful he could do so properly without

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having expertise in determining the nutritional value of the foods provided.

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regard, he says only that he thinks the Halal meals “occasionally” provide less food and

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that he has lost weight over time. However, Plainitff‟s lay belief that the meals may

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provide less food is inconsistent with the Defendants‟ multiple responses, attached to the

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pleading, that all three meals meet religious and dietary rerequirements. These facts

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were cited as the basis for each denial of Plaintiff‟s inmate grievance. (Id. at 32, 34, and

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37.)

However, he does not explain why and how

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In this

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The Complaint does not include any clear factual allegations explaining how the

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vegetarian meals burden Plaintiff‟s religious practice. It therefore fails to state a claim

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under either the First Amendment or RLUIPA. See Sefeldeen v. Alameida, 238 F.App‟x.

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204 (9th Cir. 2007) (affirming summary judgment for defendant prison officials against

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free exercise and RLUIPA claims; plaintiff “identifies no evidence in the record

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suggesting that eating the offered vegetarian meal plan violated any principles of his

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personal religious belief”). The Court will grant Plaintiff leave to amend. To state a claim

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Plaintiff must allege facts explaining how exactly RMAP burdens the practice of his faith.

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C.

Eighth Amendment

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The Eighth Amendment‟s prohibition against cruel and unusual punishment

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protects prisoners not only from inhumane methods of punishment but also from

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inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th

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Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994) and Rhodes v.

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Chapman, 452 U.S. 337, 347 (1981)) (quotation marks omitted). While conditions of

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confinement may be, and often are, restrictive and harsh, they must not involve the

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wanton and unnecessary infliction of pain. Morgan, 465 F.3d at 1045 (citing Rhodes,

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452 U.S. at 347) (quotation marks omitted). To maintain an Eighth Amendment claim, a

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prisoner must show that prison officials were deliberately indifferent to a substantial risk

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of harm to his health or safety. Farmer, 511 U.S. at 847.

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Plaintiff alleges that the RMAP meals are nutritionally deficient at times and has

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caused him to lose weight. “Adequate food is a basic human need protected by the

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Eighth Amendment.” Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996), amended, 135

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F.3d 1318 (9th Cir. 1998). “The Eighth Amendment requires only that prisoners receive

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food that is adequate to maintain health; it need not be tasty or aesthetically pleasing.”

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LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993).

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Plaintiff has been enrolled in RMAP since April 2012. Medical records attached to

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the Complaint show that Plaintiff lost twenty-three pounds from April 5, 2012 to

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September 19, 2013, a period of over 17 months. (Compl. at 50-59.) However, his
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weight loss was steady but not dramatic and could be attributable to any number of

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casues. The most recent medical progress note indicates that Plaintiff is approximately

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5‟5‟‟ and weighs 173 pounds. (Id. at 51.) According to presumably reliable Center for

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Disease Control

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malnourished. Moreover, it appears he receives three meals a day, attends regular

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medical appointments where his weight is recorded, and alleges no physical side effects

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from weight loss.

height and weight charts1, it seems Plainitff is anything but

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Plaintiff's allegations are insufficient to give rise to the inference that he is not

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receiving sufficient food to maintain his health. See, e.g., Foster v. Runnels, 554 F.3d

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807, 812-13, 813 n. 2 (9th Cir. 2009) (A prisoner who was denied 16 meals in 23 days,

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lost weight, and suffered headaches and dizziness as a result of inadequate nutrition

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alleged a sufficiently serious deprivation to implicate the Eighth Amendment.).

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The Court will grant leave to amend. To state a claim Plaintiff must allege facts in

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support of his conclusion that the RMAP meals were not sufficient to maintain his health.

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Gradual weight loss over approximately eighteen months alone will not suffice.

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D.

Equal Protection

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“The Equal Protection Clause . . . is essentially a direction that all persons

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similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc.,

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473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). A prisoner is

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entitled “to „a reasonable opportunity of pursuing his faith comparable to the opportunity

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afforded fellow prisoners who adhere to conventional religious precepts.‟” Shakur v.

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Schriro, 514 F.3d 878, 891 (9th Cir. 2008) (quoting Cruz v. Beto, 405 U.S. 319, 321-22

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(1972) (per curiam)). To state a claim, a plaintiff must allege facts sufficient to support

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the claim that prison officials intentionally discriminated against him on the basis of his

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religion by failing to provide him a reasonable opportunity to pursue his faith compared

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to other similarly situated religious groups. Cruz, 405 U.S. at 321-22; Shakur, 514 F.3d

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http://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/english_bmi_calculator/bmi_calculator.html

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at 891; Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Lee v. City of Los

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Angeles, 250 F.3d 668, 686 (9th Cir. 2001); Freeman v. Arpaio, 125 F.3d 732, 737 (9th

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Cir. 1997), overruled in part on other grounds by Shakur, 514 F.3d at 884-85.

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Plaintiff alleges that Muslim inmates are provided with Halal meat only at dinner

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while the kosher and vegetarian meal programs provide religiously observant food at all

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meals. The Complaint does not explain how the vegetarian breakfast and lunch offered

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to Muslims are religiously inadequate. There are no allegations describing how the

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kosher or vegetarian breakfast and lunch are in any way superior to the meals provided

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to Muslims.

Plaintiff included in his pleading multiple statements from certain

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Defendants indicating that the breakfast and lunch meals, while vegetarian, meet Halal

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requirements. Plaintiff‟s own allegations do not refute this assertion.

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The Complaint fails to state an equal protection claim. Plaintiff will be granted

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leave to amend. To state a claim Plaintiff must allege facts demonstrating that he was

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denied a reasonable opportunity to practice his faith with regard to his diet as compared

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to similar religious groups.

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offerings are deficient in comparison to other religious meal programs.

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V.

Any amended complaitn must address how the RMAP

CONCLUSION

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Plaintiff‟s Complaint does not state a claim for relief. The Court will grant Plaintiff

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an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49

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(9th Cir. 1987). If Plaintiff opts to amend, he must demonstrate that the alleged acts

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resulted in a deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff

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must set forth “sufficient factual matter . . . to „state a claim that is plausible on its face.‟”

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Id. at 1949 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate

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that each named Defendant personally participated in a deprivation of his rights. Jones

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v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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Plaintiff should note that although he has been given the opportunity to amend, it

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is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007). Plaintiff should carefully read this Screening Order and focus his efforts on

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curing the deficiencies set forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general

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rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint

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no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. The amended complaint should be clearly and boldly titled “First

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Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.

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8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

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omitted).

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Accordingly, it is HEREBY ORDERED that:

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1.

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The Clerk‟s Office shall send Plaintiff (1) a blank civil rights complaint form

and (2) a copy of his Complaint, filed December 2, 2013;
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Plaintiff‟s Complaint is dismissed for failure to state a claim upon which

relief may be granted;

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3.

Plaintiff shall file an amended complaint within thirty (30) days; and

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If Plaintiff fails to file an amended complaint in compliance with this order,

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this action will be dismissed, with prejudice, for failure to state a claim and failure to

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comply with a court order.

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IT IS SO ORDERED.
Dated:

February 27, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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